A case against death

NAACP lawyers argue that a non-murderer should not be executed — and question the death penalty in the process.

HE TURNED 21 IN PRISON: Reams, above, was the state's youngest death row inmate when he was sentenced.

In December 1993, Kenneth Reams, an 18-year-old black man, sat on trial for capital murder in a shooting he didn't commit.

Seven months earlier, he and a friend, Alford Goodwin, looking for quick money, had waited for a target by an ATM machine at Fifth and Chestnut streets in Pine Bluff. A similar scheme had failed the previous week when an ATM user floored the gas before Goodwin and Reams could get to him. This time the pair, with a .32 pistol in tow, were determined to get what they wanted. And though it was not in the plan to kill someone, that's what happened when Goodwin, who handled the weapon, demanded cash from the driver, Gary Turner. Turner resisted. Goodwin shot.

Kenneth Reams was not a guiltless bystander. There was no question that he was complicit in the crime — or that he was on a quick road to trouble. He had spent his teens drifting from family member to family member in Missouri and Arkansas, and Pine Bluff seemed to bring out the worst in him. He had obtained the murder weapon in a robbery of a local dry-cleaner. He used it to hold up a bus station just days before the ATM job.

But Reams was not a killer. Alford Goodwin pulled the trigger, and Goodwin got life without parole in a plea deal before Reams went to trial.

Goodwin never admitted that he was the shooter during Reams' trial, allowing prosecutors to pose the uncertainty of the gunman's identity. Testifying for himself, Reams was the only witness at trial who could say he didn't shoot Gary Turner. In fact, he was the only witness for the defense at all during the verdict phase. When the verdict came back, it was guilty; when the sentence came back, it was death.

That Reams should die and Goodwin live seems an injustice. But in the eyes of Arkansas law, an accomplice to a felony resulting in murder is as culpable as the murderer himself. Jefferson County prosecutors never had to show that Reams killed Turner; they simply needed to prove that he was party to the crime, a fact true by his own admission. Currently more than 30 states allow murder charges to be brought against non-killers under this legal doctrine, known as the felony-murder rule, and Reams' death sentence is just one of about 80 in such cases over the past three decades.

Today, almost 15 years after his sentence was handed down, Reams is still unsure whether the state will kill him. The delay is not strange in itself: A long death-penalty appeals process has been common practice since the 1960s, and eight of the 40 men on Arkansas's death row have been awaiting execution longer than Reams. Yet his trial was so full of irregularities that his case has been championed by the NAACP Legal Defense Fund, one of the foremost civil-rights law firms in the nation — the one that convinced the Supreme Court to declare the death penalty unconstitutional for a brief period in the 1970s.

NAACP lawyers have questioned whether Reams had representation at all. In capital cases, jurors must weigh aggravating circumstances, such as previous violent offenses, against mitigating circumstances that might show the criminal does not deserve to die. NAACP lawyers say Maxie Kizer, Reams' court-appointed attorney in 1993, did little to find mitigating circumstances in Reams' past. He conducted just a few interviews with people who knew Reams, and he relegated much of the work to his secretary, who had no experience with such investigations. During Reams' appeal to the Arkansas Supreme Court, Kizer hired a Little Rock lawyer unfamiliar with the case to ghostwrite his briefs; Kizer never appeared before the Supreme Court to make oral arguments.

The fact that Reams has been diagnosed as mentally retarded has been emphasized by his NAACP lawyers. (In Atkins v. Virginia, a 2002 case, the U.S. Supreme Court ruled it unconstitutional to execute the mentally retarded.) Reams received two medical opinions suggesting that he was mentally retarded after his IQ was measured at 66. A person is generally considered mildly mentally retarded when he has an IQ of under 70. Arkansas state law, however, restricts a presumption of mental retardation to those with an IQ of 65 or below.

Race is also a factor. Jefferson County was 43.1 percent black in 1990, but there was only one African American on the jury that sentenced Reams to death. During jury selection at the initial trial, Jefferson County prosecutors struck down three of four prospective black jurors. Reams' NAACP lawyers argue that they were removed in contradiction to the U.S. Supreme Court's 1986 ruling in Batson v. Kentucky, which states that a lawyer cannot challenge a juror solely based on her race.

These are the most mundane problems with Reams' case, ones that arise time and again in death-penalty litigation around the country. But more unusual irregularities have emerged in the years since the original trial. After Reams' direct appeal to the Arkansas Supreme Court was rejected in 1995, he was entitled to a second appeal called a Rule 37 hearing, which, among other uses, allows a death row inmate in Arkansas to challenge his sentence. Reams made his Rule 37 appeal in 1997 — and then the file disappeared. The case lay idle until 2005, when a motion by the Jefferson County prosecutor to drop the appeal restarted it. No one the Times spoke with knew how the file had been lost. It had to be pieced back together from the records of the original attorneys.

The lapse was arguably to the benefit of the defense — the eight years the case sat dormant were eight years that didn't see a death warrant for Kenneth Reams. But the delay also prevented the introduction of evidence favorable to Reams. When there was finally a hearing in the Rule 37 appeal last August — 10 years after it was originally filed and after three judges had recused — Reams' lawyers were prepared to offer testimony from informant Jermaine Brown. Pine Bluff police paid Brown $3,000 for information against Reams; state prosecutors never revealed the arrangement during trial. Brown, who was himself in legal trouble at the time and is currently in a Memphis prison, also had a charge dropped around the time he informed against Reams. NCAAP lawyers were to argue that the prosecution's failure to disclose the agreement was a blatant violation of principles established by the U.S. Supreme Court in Brady v. Maryland in 1963.

Before Brown's testimony came to light, however, the hearing came to an abrupt halt. The judge, Thomas Brown, recalled that his wife was a friend of the victim's widow and recused himself after four days of hearings. Perhaps of greater import, testimony from Gene McKissic, a former employee in the Pine Bluff prosecutor's office, said Jefferson County prosecutors routinely targeted African Americans for removal from juries. Judge Brown, who had worked in the prosecutor's office before he rose to the bench, felt he could not impartially hear the claim that Jefferson County discriminated against potential black jurors.

Brown was the last Jefferson County judge eligible to hear the case — a suggestion of how the insular nature of small-town life affects death-penalty cases. Jobs switch hands, and today's defender is tomorrow's prosecutor. Maxie Kizer, Reams' original attorney, is currently a part-time prosecutor in Jefferson County. Ironically, he nearly found himself in a position to rule on cases similar to Reams' — he ran, but lost, a race for Jefferson County circuit judge this year.

Reams' appeal is finally scheduled to be heard by a special judge, John Cole, in Pine Bluff this September. The NAACP Legal Defense Fund is prepared to take the case all the way to the U.S. Supreme Court if necessary. As the appeals continue, the defense will ask if Kenneth Reams deserves be killed when he himself did not kill. More broadly, it will question whether the state has any business putting people to death at all.

Buried in the boxes of briefs and transcripts that make up Kenneth Reams' case file is a pregnant moment. While giving testimony about the night of the crime, Reams described what Goodwin and he were doing before they walked to the ATM. “We had been watching a movie, ‘Lethal Injection,' I mean ‘Lethal Weapon,' ” he responded. The slip was a small betrayal of Reams' fear of death — a fear that was not unreasonable, considering that he fits the regional and racial profile of a man likely to get the death penalty.

There have been 1,102 executions since 1976, the year the death penalty resumed in the United States after a four-year hiatus. The murder rate is slightly higher in the South than in the rest of the country — 6.8 per 100,000 in 2006, compared to 5.6 per 100,000 in the West, the next highest region — but 82 percent of the 1,102 executions occurred there.

African Americans are widely thought to be at a disadvantage when tried in capital cases, though the nature of that disadvantage is not totally certain. Among inmates on death row in 2006, the last year for which statistics are available, about 42 percent were black, far disproportionate to the 12.4 percent of blacks in the general population. But it is not clear that blacks are more likely to get the death penalty solely because of their race. There is evidence that the death penalty has been inequitably pursued in federal cases; among 382 federal cases in which the U.S. Attorney General authorized pursuit of the death penalty between 1988 and 2006, 51 percent were against African Americans. But the states are a far more prominent arena for capital cases, and many scholars believe that, all else being equal, there is no evidence that the defendant's race by itself increases the probability of execution. There's a greater consensus that a death sentence is most likely to be handed down when the victim is white, as Gary Turner was: 79 percent of victims in death-penalty cases since 1976 have been Caucasian, though only about 50 percent of murder victims are white.

Though racial bias has always been an issue in death-penalty litigation, the Supreme Court's 1972 ruling in Furman v. Georgia, the case that briefly made the death penalty unconstitutional, didn't hinge on a finding of prejudice. It said instead that the death penalty was cruel and unusual because there were no common standards to guide its application. But those who saw bias in the capital punishment system could still find gratification in the ruling — if the death penalty could be overturned because it was irregularly applied, surely evidence of racial discrimination, if it could be found, would yield a similar result in future cases.

Despite its Furman opinion, however, the Supreme Court has refused to strike down capital punishment on the grounds that it violates the due process provision of the 14th Amendment. In its 1976 Gregg v. Georgia decision, the court reinstated the death penalty after finding that the states had implemented rules standardizing death sentences. The greater blow to anti-death-penalty advocates, however, was McCleskey v. Kemp, a 1987 case in which the plaintiff presented a study that found racial bias in executions. In that decision, the Supreme Court ruled that statistical evidence of racial discrimination by itself is not enough to make the death penalty unconstitutional. Prejudice must be proven on a case-by-case basis to dismiss a capital sentence.

“McCleskey allows for racial discrimination to continue in the exercise of the death penalty,” said Christina Swarns, one of the NAACP Legal Defense Fund lawyers on Reams' appeal team. “We can show you 'til the cows come home that more black people are charged, more black people are sentenced, more black people are executed, but the Supreme Court says that the constitution doesn't give you any remedy for that.”

One reason that the Court ruled as it did in McCleskey was because it had been inundated with appeals of death sentences since the 1960s, when pro-bono firms such as the NAACP Legal Defense Fund began to mount organized challenges to capital punishment on constitutional grounds. Before that, state governors played a much bigger role in deciding who died by exercising their powers of clemency more widely. With the new legal strategies, however, judges were being asked to apply logic to the sentence of death. What the Supreme Court appeared to be saying with a ruling like McCleskey was that the death penalty can't be systematically rationalized through the judicial branch. Rather, it's for the legislative branch to decide whether it's the will of the people for executions to be outlawed.

The last Gallup poll to measure the issue found 69 percent of the U.S. population was in favor of capital punishment. What surveys don't gauge is the reasoning behind that support.

Some believe that support for the death penalty has little to do with the merits of capital punishment at all — that rather it's a political litmus test supposed to prove the advocate “tough on crime,” regardless of the fact that the vast majority of criminals aren't eligible to be executed. And there's some truth to that opinion, particularly among politicians themselves — it's rare for a major candidate who is against the death penalty to win office, and the matter invariably becomes a debate in campaigns. Like imbroglios over abortion and gay marriage, debate surrounding the death penalty has become less about the issue itself and more about how someone's opinion aligns him on the political spectrum.

If one accepts that this line of thinking has at least a hint of truth, it offers an eye-opening way to look at the death-penalty debate. If the decision to kill someone — one of the gravest decisions the state can make — is influenced primarily by political expediency, then it's questionable whether the death penalty is logical at all. And that raises a new set of questions in turn: Should killing really be a matter of public policy? Or is the issue really one of morality? Is it something that can only be dealt with on a philosophical level?

The decision for death can mean many things to many people — retribution, deterrence, justice, consolation for the victim. All of these can be supported with some sort of reasonable argument. But, at root, execution also amounts to a declaration by the state of the ultimate inability to redeem a human being. To kill is to assert utter rottenness.

Questions of morality don't lend themselves to consensus, which is one reason why there will surely never be an end to the argument over the death penalty. But some in Arkansas are attempting to effect a reversal of policy — or at least of attitudes — in a state that has never been overly squeamish about executions. (According to the Death Penalty Information Center, an anti–death-penalty research group in Washington, D.C., Arkansas has killed 505 people in its history. Its 27 executions since 1976 rank it 10th in the nation.)

David Rickard, head of the Arkansas Coalition to Abolish the Death Penalty (ACADP), is running a separate effort to put a moratorium on executions in the state. (A member of Little Rock's Unitarian Universalist Church, Rickard serves in an official capacity as Kenneth Reams' spiritual adviser.) The moratorium group also wants Gov. Mike Beebe to consent to a study of the way the death penalty is administered. The campaign will be a long one — Rickard intends to present 100,000 signatures in favor of a moratorium to Beebe by January, and he hopes to present the results of the study to the legislature during the 2011 session. The campaign, which has district-level leaders in 15 counties, began canvassing in about 30 counties across the state during the May primaries.

Rickard said he would base the death-penalty study commission on similar groups in New Jersey and Maryland, which were created by legislatures and whose staffs include appointees of the states' governors. The committee would study issues that include cost, impact on victims' families, and racial and geographical bias in the administration of capital punishment. Rickard particularly emphasized the last matter. He pointed out that 25 of Arkansas's 40 death row inmates are black. (Just under 16 percent of Arkansans are black.) He noted that about 40 of Arkansas's 75 counties brought less than five capital charges from 2002-2006; 13 of these brought none. He also stressed that in 2006 there were 174 capital charges brought across the state, but only five men have been added to death row since that time. Is the gap because of prosecutorial zeal, or are juries reluctant to hand down the death sentence?

Rickard said he hopes the commission will be state-appointed and include the involvement of the governor. But Beebe looks unlikely to go along. Though Beebe is in favor of any research the group conducts on its own, he doesn't want his office to take part. “The governor would not be interested in having any direct involvement with any study, because any such study should be truly independent,” Beebe spokesman Matt DeCample said.

The governor is equally cool to the prospect of a moratorium. “It's a very sober responsibility for any governor,” said DeCample of the executive authority to sign death warrants. “It is not one that [Beebe] enjoys. At the same time, he recognizes that it's the law of the land, and as such it's one of the duties that he swore to uphold. If the people decide to change the law, the people can change the law. That moratorium is not something he's considering right now.”

(DeCample's statement regarding the “law of the land” refers simply to the fact that the legislature has legalized the death penalty in Arkansas. No statute says the governor has to approve executions; it is fully within his power to grant clemency.)

Beebe has never had to sign a death warrant. The last execution in the state was in 2005. From September 2007 to April of this year, there was a de facto national moratorium on executions as the Supreme Court waited to rule in a Kentucky case on whether that state's lethal injection procedures were constitutional. The court found they were, and executions have resumed. As of press time, there have been three this year, in Georgia, Mississippi and Virginia.

Though no Arkansas inmates have execution dates currently scheduled, several could soon have their hour assigned. Three men on death row — Terrick Nooner, Don Davis and Jack Jones — were granted stays pending the ruling in the Kentuckycase.The state is making a slight adjustment to its lethal injection protocols to conform to that decision, and the attorney general is expected soon to request the stays for Davis and Jones be lifted. (Nooner is in the midst of another appeal that should prevent his execution for at least a year.) A fourth death-row inmate, Frank Williams, has issued a technical challenge to the state's execution methods in Pulaski County circuit court. The state has moved to dismiss that appeal.

Reams does not have to count himself among the death-row inmates expecting execution, at least not for the time being — if he were to lose his appeal in Jefferson County, he could bring his case to the Arkansas Supreme Court, then the Eighth Circuit Court of Appeals in St. Louis, then, finally, the Supreme Court of the United States. And since the state will surely appeal any ruling unfavorable to it, the legal skirmish can be expected to drag on even if he wins in the fall.

Those who know Reams paint a picture of a man who has changed immensely since his troubled youth. Not only that, but they also see a proactive man, one willing to fight for his own cause and to minister to others besides. (Reams' attorneys advised him against talking with the Times for this article because of pending appeals.)

Rickard met Reams about seven years ago. He was the head of ACADP at the time, but he had never met and talked with a death-row inmate. Rickard recounted, “[Kenneth] wrote to me one time and says, ‘How in the world can you be involved in trying to abolish the death penalty and you've never visited anybody on death row?' So I screwed up my courage and I wrote back to him and I said, ‘All right. I'll come visit you.'” It was the first time he had ever gotten such an invitation.

Rickard now sees Reams on a monthly basis. His portrayal of him is an argument for rehabilitation over retribution. “The thing I would say about him is that today he is a whole different person from what he was when he went into incarceration,” said Rickard. “He's used his time to do a lot of thinking, about himself, about the life he's lived and what he would like to do if he were able to get out. And I think that this man is no longer a threat to you or me or himself.”

Reams' family members also describe how Reams has redeemed his life despite — or rather because of — his time in prison. His aunt, Amelia Reams, with whom he lived for a time in Missouri, says Kenneth believes that being sent to prison was a blessing in disguise. “Ken had a bad childhood and he moved around too much,” she said. “He always ran off. He tells me that ‘If I hadn't come to this prison, man, I'd have been dead.' It slowed him down.”

Bernard Reams, Amelia's son, agrees that his cousin was headed down the wrong road in 1993. “Before he left Missouri, I told him, man, please don't go back to Pine Bluff, whatever you do. Next thing you know, I pick up the paper and he's on the front page.” But Bernard, who now lives in Pine Bluff and visits Kenneth at nearby Varnerprison, says he's seen a definite change since those days of drifting and crime. “He's a better person,” Bernard Reams said. “Even though he's in prison, he tries to help others. He's made friends with a lot of people. A lot of good people. White people, black people, everybody.”

Reams set out to improve himself almost immediately after he was sentenced to death. He started working toward his GED upon entering prison, and he now writes letters and reads constantly. “He's perhaps one of the most well-read people I know on death cases,” Rickard said. “He's very, very up to date on what's going on.”

(Swarns, Reams' lawyer, said those types of activities weren't precluded by the diagnoses of mental retardation. “It doesn't mean you're brain damaged or brain dead,” she said. “It just means you learn at a slower rate. He's spent 15 years doing nothing but trying to understand [his case].”)

Rickard added that after a recent visit, Reams asked him to send materials about starting a small business. “He said, ‘I don't figure I want to be in here the rest of my life. I expect to be out.' ”

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